People v. Oram

• Decision Date: 05 February 2009
• Docket Number: No. 07CA0023.,07CA0023.
• Citation: 217 P.3d 883
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason Richard ORAM, Defendant-Appellant.
• Court: Colorado Court of Appeals

217 P.3d 883

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason Richard ORAM, Defendant-Appellant.

No. 07CA0023.

Colorado Court of Appeals, Div. II.

February 5, 2009.

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Michael C. Mattis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Jason Richard Oram, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree burglary and felony menacing. He contends his burglary conviction should be reversed based on his reliance on the common law bonding agent's privilege. We conclude there is a common law bonding agent's privilege in Colorado, but that it did not justify Oram's entry into the home at issue. Accordingly, we affirm.

I. Background

Oram and his codefendant, Devon Scott Weinstein, were "bounty hunters" or bond recovery agents (collectively agents). LaDonna's Bail Bonds (LaDonna's), a commercial bail bonds company, posted bond for John E. Vigil (Vigil) on a drug charge. Vigil completed a bond application and agreement for surety bail bond with LaDonna's. Vigil listed 1446 King Street in Denver as his address, but he did not live there. Further, Vigil listed that he was 5'8", 128 pounds, Hispanic, with brown eyes and hair, and that his birthday was February 2, 1948.

Vigil failed to appear for a scheduled court appearance, prompting Jefferson County to issue an arrest warrant for him. A copy of the failure to appear notice was sent to LaDonna's, which the bond company considered a violation of Vigil's bond agreement. Thereafter, LaDonna's hired Oram and Weinstein to locate and apprehend Vigil.

On August 2, 2004, LaDonna's gave Oram and Weinstein a copy of its file on Vigil. The agents also obtained a copy of Vigil's file at the Jefferson County courthouse, where they confirmed that Vigil's arrest warrant was still active and that he was not in police custody. Also, at the courthouse, the agents unsuccessfully attempted to obtain Vigil's photograph.

Next, the agents tried but were unable to contact Vigil by telephone, using the phone numbers he had provided. At approximately 9 p.m. on August 2, the agents arrived at the King Street residence and began surveillance of the house and surrounding area. After an hour, they approached the front door. Oram testified that he and Weinstein had taser guns. Two occupants appeared at the door, G.V., the owner of the residence, and J.M., another resident. Also inside was a third resident, Z.V. Eugene Vigil, Vigil's brother, also resided at the residence, but was not home at the time.

G.V. testified that she reached for the door latch and as she did so, the door flew open and Weinstein swung her out onto the porch and put a gun to her head. J.M. provided similar testimony.

Weinstein asked G.V. and J.M. for their names, and Oram testified that he thought the male occupant, J.M., answered "John." Weinstein entered the house, and Oram testified that he saw J.M. take an aggressive step toward Weinstein. Oram then forced J.M. to the floor and handcuffed him. Oram claimed he did not have a clear view of J.M. in the darkness, but that his height and build matched Vigil's description. After Oram saw that J.M. was not old enough to be Vigil, and after Z.V. produced J.M.'s identification, the agents removed the handcuffs from J.M.

Eugene Vigil arrived at the house during the incident. The agents asked Eugene Vigil and the other occupants the whereabouts of Vigil. However, none of them knew Vigil's location. Eugene Vigil contacted the agents approximately one hour later and told them Vigil was in police custody in Denver.

The agents did not identify themselves as bounty hunters. The occupants testified that the agents had represented themselves as a police officer and a federal agent and that they were investigating a claim or a disturbance. The day after the incident, G.V. called the police when she became suspicious that Oram and Weinstein were not law enforcement officials.

At trial, the prosecution's motion for joinder to try Oram and Weinstein as codefendants was granted over Weinstein's objection. At the conclusion of the prosecution's case, the defense moved for a judgment of acquittal on the burglary charge. The trial court denied the motion. Weinstein did not testify at trial, while Oram did.

II. Sufficiency of the Evidence

Oram contends that his second degree burglary conviction should be vacated because there was insufficient evidence to prove beyond a reasonable doubt all the elements of the offense. Oram maintains that he was authorized as a bond recovery agent by statute, common law, and Vigil's bond agreement to enter the residence. We reject this contention and hold that the evidence was sufficient to support his convictions.

We must view the evidence in the light most favorable to the prosecution and determine whether it is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt as to the elements of the charge. People v. Martinez, 165 P.3d 907, 913 (Colo.App.2007).

The credibility of the witnesses is solely within the province of the jury; the trial court may not determine what specific weight is given to pieces of evidence; a modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt; and the verdict may not be based on guessing, speculation, or conjecture. People v. Sprouse, 983 P.2d 771, 777-78 (Colo.1999). If there is evidence upon which one may reasonably infer that the elements of the crime have been established, the evidence is substantial and sufficient. People v. Montano, 195 Colo. 420, 423, 578 P.2d 1053, 1055 (1978).

The second degree burglary statute provides:

A person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.

§ 18-4-203(1), C.R.S.2008.

In this case, the jury was provided with the following instruction 13,

The elements of the crime of Second Degree Burglary are:

(1) That the Defendant,

(2) in the City and County of Denver, State of Colorado, on or about August 2, 2004,

(3) knowingly

(4) unlawfully entered or remained unlawfully in, the dwelling of another,

(5) with intent to commit therein the crime of Menacing,

(6) without the affirmative defense in Instruction No. 16.

After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the Defendant Guilty of Second Degree Burglary.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the Defendant Not Guilty of Second Degree Burglary.

The affirmative defense instruction, discussed in part III below, provided that it was an affirmative defense to the charged crimes if the jurors found that Oram acted as a "reasonable bonding agent" in the circumstances surrounding the attempted arrest of Vigil.

Oram contends that the evidence was insufficient to prove (1) that he entered or remained in the residence unlawfully; (2) that he knew he was entering or remaining in the residence unlawfully; and (3) that he intended to commit the crime of menacing in the residence. We consider each contention in turn.

A. Evidence of Unlawful Entering or Remaining

Oram argues the evidence was insufficient to support the element of entering or remaining unlawfully in a dwelling. We disagree.

Whether Oram entered the residence unlawfully is a mixed question of law and fact. Viewing the facts in the light most favorable to the People, we review de novo the legal issue of unlawful entry. See People v. Harrison, 165 P.3d 859 (Colo.App.2007). To determine the legal issue of whether there was sufficient evidence that Oram entered the residence unlawfully, we must first determine the extent of Oram's authority to enter or remain in the residence. Oram contends that, as a bonding agent, he had such authority based on statute, the common law, and the bail bond contract. See State v. Tapia, 468 N.W.2d 342, 343 (Minn.Ct.App. 1991).

1. Statutory Authority

Under statute, a surety shall be exonerated from a bail bond when the defendant is surrendered "into custody at any time before a judgment has been entered against the sureties for forfeiture of the bond," and a "surety may seize and surrender the defendant to the sheriff of the county wherein the bond is taken." § 16-4-108(1)(c), C.R.S.2008.

The People contend that section 16-4-108(1)(c) abrogated any common law bonding agent's privilege in Colorado and that, under the second degree burglary statute, section 18-4-203, C.R.S.2008, Oram could not lawfully enter the residence. Oram in turn maintains that section 16-4-108(1)(c) did not abrogate the common law bonding agent's privilege in Colorado because that statute did not specifically or expressly repeal it. We agree with Oram in part, but conclude that the bonding agent's privilege in Colorado is narrower in scope than he asserts.

In Colorado, the common law of England continues to apply unless it has been "repealed by legislative authority." § 2-4-211, C.R.S.2008. To manifest its intent to abrogate a common law right, the General Assembly must do so either by explicit statutory language or by clear implication. Leader Federal Bank for Savings v. Saunders, 929 P.2d 1343, 1348 (Colo.1997); see also Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991).

The exoneration statute, section 16-4-108(1)(c), recognizes the bonding agent's authority to seize a principal. However, unlike the common law, the statute does...